Opinion
March 7, 1994
Appeal from the Supreme Court, Kings County (Scholnick, J.).
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
In October 1988 the plaintiff was permitted to register at Jamaica Hospital's high-risk prenatal care clinic based on her physical examination and history. The plaintiff also volunteered to test for Acquired Immune Deficiency Syndrome (hereinafter AIDS), which proved positive for the HIV antibody. The plaintiff alleges that, based on the test results, Jamaica Hospital's personnel, including the defendant Maurice Abitbol, who is a doctor, refused to continue to treat her at the high-risk prenatal care clinic, told her she should have an abortion, and, among other things, referred her to Kings County Hospital, where she underwent an abortion.
The plaintiff contends that Dr. Abitbol violated her rights as a handicapped person protected by Federal Rehabilitation Act of 1973 § 504 ( 29 U.S.C. § 794 et seq., added by Pub L 93-112, 87 US Stat 394). Dr. Abitbol contends that he is not subject to the provisions of that statute because he is an employee of Jamaica Hospital and does not directly receive Federal financial assistance. We agree with Dr. Abitbol that the requirements of section 504 do not pertain here. Congress limited the scope of section 504 to those who actually "receive" Federal financial assistance, as part of the costs of the recipient's agreement to accept the Federal funds (see, Department of Transp. v. Paralyzed Veterans, 477 U.S. 597, 605). The obligations of section 504 are imposed upon those who are in a position to accept or reject them as a part of the decision whether or not to "receive" Federal funds (Department of Transp. v. Paralyzed Veterans, supra). Dr. Abitbol cannot be held to the requirements of section 504 simply because he is an employee of a Federally-funded hospital (see, Department of Transp. v. Paralyzed Veterans, supra; Glanz v Vernick, 756 F. Supp. 632, 637 [D Mass]).
However, we reject Dr. Abitbol's contention that the Supreme Court erred in denying the branch of his motion which was for summary judgment with respect to the fifth cause of action, which alleges that he negligently breached his duty to provide proper care and treatment to the plaintiff. Contrary to his contention, his affidavit, which alleged in conclusory fashion that he acted in conformity with the appropriate standard of care, was insufficient to establish an absence of negligence as a matter of law (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325-326; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Wertheimer v. Paley, 137 A.D.2d 680). Moreover, the affidavits of the plaintiff and her two physicians are sufficient to create an issue of fact as to whether Dr. Abitbol negligently gave erroneous advice upon which the plaintiff affirmatively acted in deciding to have an abortion (see, Martinez v. Long Is. Jewish Hillside Med. Ctr., 70 N.Y.2d 697, 699).
Finally, Dr. Abitbol has failed to establish the absence of any triable issues of fact with respect to the plaintiff's second cause of action against him under the Human Rights Law (see, Executive Law § 296) (see, Rotuba Extruders v. Ceppos, 46 N.Y.2d 223). Balletta, J.P., Pizzuto, Friedmann and Krausman, JJ., concur.